Terms & Conditions
epaCUBE, INC.
SOFTWARE SUBSCRIPTION AGREEMENT
This Software Subscription Agreement (this “Agreement”) is entered into by and between epaCUBE, Inc. (“epaCUBE”) and the undersigned subscriber (“Subscriber”) effective as of the date set forth below on the signature page (the “Effective Date”).
SECTION 1 SUBSCRIPTION
1.1 Access. epaCUBE grants to Subscriber access to use, in accordance with this Agreement, the software (the “Software”) identified on Exhibit A to this Agreement.
1.2 Scope. Subscriber and any affiliates of Subscriber identified to epaCUBE in writing as of the Effective Date may use the Software only in the ordinary course of its business operations and for its own business purposes and only in accordance with the terms of this Agreement. Current affiliates are included on Exhibit C of this agreement.
1.3 Initial Term. The initial term begins on the Effective Date and will continue for a period of months set forth on Exhibit A unless terminated earlier in accordance with this Agreement.
SECTION 2 epaCUBE SERVICES
2.1 Installation and Implementation. epaCUBE shall provide Subscriber access to the Software on the delivery date (the “Delivery Date”) set forth in the project plan (the “Project Plan”) set forth in Exhibit B to this Agreement.
The Project Plan shall set forth and describe the installation and implementation services and training to be provided to Subscriber by epaCUBE.
2.2 Ongoing Support Services. Beginning on the Effective Date, and provided that Subscriber is not in default in making any payment to epaCUBE hereunder, epaCUBE shall provide the following ongoing support services to Subscriber:
- epaCUBE shall provide to Subscriber, during normal working hours, telephone assistance regarding Subscriber’s proper and authorized use of the Software.
- epaCUBE shall provide to Subscriber, during normal working hours, commercially reasonable efforts in solving errors reported by Subscriber. Subscriber shall provide to epaCUBE a reasonably detailed explanation of any error and reasonably assist epaCUBE in its efforts to diagnose, reproduce, and correct the error. For an additional fee, these support services shall be provided by epaCUBE at Subscriber’s location(s) if on-site services are necessary to diagnose or resolve the problem.
2.3 Optional Professional Services. epaCUBE shall provide to Subscriber additional installation services, additional training, consulting services, custom modification programming, support services relating to custom modifications, assistance with data transfers, system restarts and reinstallations, and other specialized support services subject to execution by the parties of a statement of work (each, a “SOW”) or as defined and set forth in Exhibit B of this Agreement.
Optional services defined on Exhibit B or on such SOW shall describe the work to be performed, set forth a timeline in which the work is to be performed, provide the price for the work to be performed and payment terms.
2.4 Limited Services. Except as expressly set forth in this Agreement, epaCUBE shall have no obligations to Subscriber to provide any additional services of any kind.
SECTION 3 PAYMENTS
3.1 Subscription Fee. Subscriber shall pay epaCUBE a subscription fee (the “Subscription Fee”) in the amount stated on Exhibit A. Following completion of the Initial Term, the subscription fee may be increased a maximum of six percent (6%) per year on an annual basis, in the sole discretion of epaCUBE.
In the event that Subscriber identifies to epaCUBE in writing any additional affiliate of Subscriber after the Effective Date and wishes to use the software for the operations of such additional affiliate, the subscription fee will be increased to reflect the increase in annual revenue of such additional affiliate relative to the annual revenue of Subscriber and its affiliates identified as of the Effective Date.
3.2 Optional Professional Service Fees. Subscriber shall pay epaCUBE a monthly professional service fee in the amount and terms set forth on Exhibit A for the professional services set forth on Exhibit B.
3.3 Subscriber Expenses. Unless otherwise expressly set forth on an Exhibit attached hereto or a SOW, Subscriber shall bear all expenses related to this Agreement.
3.4 Taxes. The fees and other amounts payable by Subscriber to epaCUBE under this Agreement do not include any taxes of any jurisdiction that may be assessed or imposed upon Subscriber or that may be required to be collected by epaCUBE. Subscriber shall directly pay any such taxes assessed against it, and Subscriber shall promptly reimburse epaCUBE for any such taxes payable or collectible by epaCUBE.
3.5 Payment Terms. The Subscription Fee shall be due and payable as set forth on Exhibit A and each anniversary thereafter as defined on Exhibit A. All other fees and all expense reimbursements shall be invoiced by epaCUBE as and when incurred. Subscriber’s payments shall be due within thirty (30) days after receipt of such invoice.
SECTION 4 LIMITATIONS
4.1 epaCUBE actions. If any infringement claim by any third party regarding the software is initiated, or in epaCUBE’s sole opinion is likely to be initiated, then epaCUBE shall have the option, in its sole discretion, to:
- modify or replace all or the infringing part of the software or any related documentation so that it is no longer infringing; provided that the software functionality does not change in any material adverse respect; or
- procure for subscriber the right to continue using the infringing part of the software; or
- terminate this agreement.
4.2 disclaimer. epaCUBE makes no representations or warranties, oral or written, express or implied, including implied warranties of merchantability and fitness for a particular purpose.
4.3 limitations. epaCUBE’s total liability under this agreement shall not under any circumstances exceed the total amount of money paid by subscriber to epaCUBE under this agreement.
under no circumstances shall epaCUBE be liable to subscriber or any other person for lost revenues, lost profits, loss of business, or any incidental, indirect, exemplary, consequential, special or punitive damages of any kind, including such damages arising from any breach of this agreement or any termination of this agreement, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability), or otherwise and whether or not foreseeable, even if epaCUBE has been advised or was aware of the possibility of such loss or damages.
SECTION 5 CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANT
5.1 Disclosure Restrictions. All Confidential Information (as herein defined) of one party (the “Disclosing Party”) in the possession of the other party (the “Receiving Party”) shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality thereof.
The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except as necessary to implement or perform this Agreement, or except as required by law; provided that the other party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees and agents whose responsibilities require such use or access.
The Receiving Party shall advise all such employees and agents, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Agreement.
The Receiving Party shall be liable for any breach of this Agreement by any of its employees, agents or any other Person who obtains access to or possession of any of the Disclosing Party’s Confidential Information from or through the Receiving Party.
“Confidential Information” means all business or technical information disclosed by the Disclosing Party to the Receiving Party in connection with this Agreement.
Without limiting the generality of the foregoing, in the case of Subscriber, Confidential Information shall include Subscriber’s data, the details of Subscriber’s computer operations, information regarding Subscriber’s products, services, marketing strategies and future plans, and any information regarding Subscriber’s customers.
In the case of epaCUBE, Confidential Information shall include, but is not limited to, information of any nature, including all oral and written communications, data, know-how, materials, products, processes, technology, computer programs, specifications, graphs, charts, manuals, computer software, test results, tools, systems and methods of use.
Confidential Information shall not include information that is or later becomes publicly available through no fault of the Receiving Party, is or was rightfully obtained by the Receiving Party from independent sources free from any duty of confidentiality or is or was independently developed by the Receiving Party without the use, aid or application of the Confidential Information.
5.2 Use Restrictions. Subscriber shall not do, attempt to do, nor permit any other Person to do, any of the following:
- use the Software for any purpose, at any location or in any manner not specifically authorized by this Agreement;
- make or retain any copy of any Software except as specifically authorized by this Agreement;
- create or recreate the source code for the Software, or re-engineer, reverse engineer, decompile or disassemble the Software;
- refer to or otherwise use the Software as part of any effort either
- to develop a program having any functional attributes, visual expressions or other features similar to those of the Software or
- to compete with epaCUBE or enable any person or entity to compete with epaCUBE;
- remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Software, or fail to preserve all copyright and other proprietary notices in any copy of any Software made by Subscriber; or
- sell, market, license, sublicense, distribute or otherwise grant to any Person, including any outsourcer, vendor, consultant or partner, any right to use the Software (except as permitted by this Agreement).
5.3 Enforcement. Each party acknowledges that the restrictions in this Agreement are reasonable and necessary to protect the other’s legitimate business interests. Each party acknowledges that any breach of any of the provisions of this Section 5 may result in irreparable injury to the other for which money damages could not adequately compensate.
If there is a breach, then the injured party may be entitled, in addition to all other rights and remedies which it may have at law or in equity, to have a decree of specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all persons involved from continuing the breach.
The existence of any claim or cause of action that a party or any other person may have against the other party shall not constitute a defense or bar to the enforcement of any of the provisions of this Section 5.
SECTION 6 TERMINATION
6.1 Termination by Subscriber. Subscriber may terminate this Agreement, by giving written notice of termination to epaCUBE in the event that epaCUBE breaches any of its material obligations under this Agreement and does not cure the breach within sixty (60) days (provided that the breach is susceptible to cure) after Subscriber gives written notice to epaCUBE describing the breach in reasonable detail.
6.2 Termination by epaCUBE. epaCUBE may terminate this Agreement, by giving written notice of termination to Subscriber, upon the occurrence of any of the following events:
- Subscriber fails to pay to epaCUBE, within ten (10) days after epaCUBE makes written demand therefore, any past-due amount payable under this Agreement.
- Subscriber breaches any of its other material obligations under this Agreement and does not cure the breach within sixty (60) days (provided that the breach is susceptible to cure) after epaCUBE gives written notice to Subscriber describing the breach in reasonable detail.
- Subscriber dissolves or liquidates or otherwise discontinues all or a significant part of its business operations.
- Upon a merger, sale of all or substantially all of Subscriber’s assets or other transactions resulting in a change of the ownership or control of Subscriber. Subscriber shall provide written notice to epaCUBE of any proposed change of ownership or control of Subscriber not later than five (5) business days prior to any transaction resulting in a change of ownership or control of Subscriber.
- The election of epaCUBE to terminate this Agreement pursuant to Section 4.1.
6.3 Term. This Agreement shall have an initial subscription term (the “Initial Term”) defined on Exhibit A, and thereafter this Agreement shall automatically renew for periods of one year each unless either party gives written notice of its intent not to renew this Agreement at least ninety (90) days prior to the end of the then current Term. “Term” shall mean the Initial Term or any renewal term.
6.4 Effect of Termination. Upon a termination of this Agreement, whether under this Section 6 or otherwise, or upon the expiration of the Term, Subscriber will not have access to the Software. The provisions of Section 4, Section 5, Section 6 and Section 7 shall survive any termination of this Agreement, whether under this Section 6 or otherwise.
SECTION 7 OTHER PROVISIONS
7.1 Notices. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt, the third business day after being mailed by first class registered or certified mail, or the first business day after being sent by a reputable overnight delivery service.
Any notice may be given by facsimile or by electronic mail (e-mail) and shall be deemed to have been received one business day after confirmation of transmission by the transmitting equipment. All written notices shall be sent to each party’s address, fax number or e-mail address as set forth on the signature page hereto and such other address as a party may designate to the other party in writing from time to time.
7.2 Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents.
7.3 Entire Understanding. This Agreement, which includes and incorporates all exhibits and SOWs attached hereto states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement.
7.4 Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement.
7.5 Severability. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement.
7.6 Headings. Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
7.7 Personnel. For purposes of this Agreement, the term “personnel” means a full-time, part-time or temporary employee, independent contractor or consultant.
7.8 Jurisdiction and Process. In any action relating to this Agreement,
- each of the parties irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Dallas County, Texas
- each of the parties agrees that this Agreement shall be construed and enforced in accordance with the laws of the state of Texas, excluding its choice of law principles;
- each of the parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which the party is to receive notice in accordance with Section 7.1; and
- the prevailing party shall be entitled to recover its reasonable attorney’s fees, court costs and other legal expenses from the other party.
7.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
